No. 2647 | La. | May 15, 1870
This is an action to fix the rank of mortgages.
On the second of February, 1855, Elam Bowman executed a mortgage in favor of Stephen Duncan, on 3400 acres of land in the parish of Tensas, to secure the sum of $45,000, and Mrs. Bowman intervened in the act, and made the usual renunciation of a wife’s mortgage rights in favor of said Duncan, binding herself and her heirs at all times to recognize and sustain the validity of her renunciation. This act of mortgage was inscribed on the next day, and reinscribed on tho thirteenth of September, 1865. On the tenth of January, 1861, Bowman ■executed another .mortgage, on 1920 acres of said land, in favor of William M. Shaw, tutor of William Gegan, the plaintiff, in which Mrs. Bowman did not renounce. This act was duly inscribed on tho same day.
On the eighteenth of May, 1866, Mrs. Bowman obtained a judgment ngainst her husband for $13,278 42, and interest, with a- legal and tacit mortgage on all his property, to take effect for $9325 from tho years 1840 and 1845, and for $3953 42 from January 1, 1862.
Prom the judgment fixing tho relative rank of those three mortgages, all tho parties have appealed.
The first question to be settled is, the effect upon Mrs. Bowman’s mortgage rights by tho failure of Duncan, within ten years, to reinscribo his mortgage, in which she made a renunciation in his favor.
By this renunciation she did not transfer to him her rights of mortgage, but simply yielded to him the rank to which, at the time, her mortgage was entitled. 12 An. 778. Her mortgage was an acccssory to the principal obligation, existing in her favor, on the part'of her husband, and could not be transferred, separately from the principal obligation. The law of 1835 (p. 153) authorized her to make this waiver or postponement, but.it was made with reference to tho existing law of registry, which became a part of tho contract, and its
Now, when the inscription of his mortgage expired by tbe lapse of time, the effect of the inscription, that is tho evidence of the mortgage, ceased not only as to third persons, but tho parties to the act. C. C. 3333. Admitting Mrs. Bowman to have been a party to the act, at the end of ten years it ceased to be evidence against her of a mortgage upon her husband’s property, and all mortgages then having-legal existence and vitality upon that property, assumed their position the same as if Duncan's mortgage had never been created. Consequently, Mrs. Bowman’s mortgage resumed its legal force and rank, and the subsequent rcinscription of Duncan’s mortgage acquired or operated no greater effect than- a new contract of mortgage made between the parties on that day. 3 An. 100; 21 An. 204. To have any effect against her in displacing her mortgage rights, then existing in full force, her consent was necessary. We know of no law which implies her consent to a renunciation by the reiuscription of the mortgage given by the husband. Laws relating- to tho contracts of married women are strictly construed. The position and relation of her rights, as to her husband and third persons, had materially changed, and it is not certain that she would have renewed her agreement with Duncan, as she might thereby have complicated her rights as to the Gegan mortgage, in favor of which she did not renounce, and which then had priority over Duncan’s mortgage.
In this view of the case, which, in our opinion, is based on correct principles of law, all difficulty in settling the respective rights of the mortgagees disappears.
Mrs. Bowman holds the first mortgage for $9325 on all the property of her husband, and for the-whole of her judgment ($13,278 42, with interest as allowed,) on the 1480 acres not subject to Gcgan’s mortgage. Gegan has the second mortgage on the 1920 acres described in his act, and Duncan comes last, as his mortgage takes effect only from tho day of its rcinscription. It follows that, if tho 1420 acres will pay Mrs. Bowman’s mortgage, she will take none of the proceeds of the land mortgaged to Gegan; but if not, sbe can claim no part of tho -$3953 42 until Gegan is paid. And if there is any surplus after paying the said two sums to Mrs. Bowman, and that due Gegan, it will go to Duncan. As the record shows that tho land was not so.d at the date of the appeal, the cause must be remanded for distribution.
It is therefore ordered that the judgment appealed from be reversed, and this cause remanded to tbe lower court to be proceeded in. according to the foregoing views, and according to law; costs of appeal to be paid by Duncan, and those of the lower court to abide the. final •decision.